Bilateral Investment Rule-Making: BITs or FTAs with Investment Rules?

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China is upgrading its bilateral investment treaties (BITs), and in the meantime embracing free trade agreements (FTAs), which can be accommodated to offer international investment rules (IIRs). A specific question in this regard will be: shall the investment issues be left to the upgraded BIT or proposed FTA? Given the trend that the investment rules embodied in the FTAs are increasingly intended to replace BITs between contracting states, this question, which poses a preliminary issue to the trade policy-makers of China and its partners, must be addressed from the public policy choice point of view. The paper argues for a sequencing of bilateral investment rule-making and proposes that unless the proposed FTA with investment rules is to leave policy space for the government, the BIT shall be given a due role to play in the course of economic integration between China and its partners.

Affiliations:
1: Professor of Law, China University of Political Science and Law, The Collaborative Innovation Center for Global Governance and International Rule of Law, qkong2000@cupl.edu.cn